End of Title 42: IACHR calls on United States to protect rights of migrants and refugees

May 26, 2023

Washington, D.C.- The Inter-American Commission on Human Rights (IACHR) welcomes the termination of the Title 42 public health order and calls on the State to adopt measures to ensure access to asylum and to other mechanisms for immigration regularization for persons in human mobility.

The IACHR and other international human rights organizations warned that the application of the Title 42 order, which prohibited the introduction of non-citizens at U.S. land borders based on public health concerns, also impeded access to asylum procedures and the identification of possible international protection needs, which could be contrary to the State's international obligations. According to the most recent figures from U.S. Customs and Border Protection (CBP) provided by the State, 500,623 migrants have been expelled at the southern border under this order during the 2023 fiscal year. This figure represents 34.9% of the total number of removals attempting to enter the country at the southern border.

The government announced new measures in advance of the termination of the Title 42 order on May 11, according to official information, this would be aimed at encouraging the use of new and expanded legal channels to reach the country. However, those who do not do so would be subject to a presumption against eligibility for asylum and would be removed if they cannot demonstrate that they meet an exception, rebut the presumption. Additionally, information provided by the State indicates that migrants would not be expelled if they demonstrate eligibility for statutory withholding of removal or protection under the regulations that implement Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The new provisions, announced in January 2023, would be enforced under Title 8 of the U.S. Federal Code, which authorizes expedited removal of migrants and, for those who receive a final order of deportation, a ban on return of at least five years with the risk of facing criminal prosecution if re-entry is attempted before then.

The Commission also notes with concern that this new measure, and the enforcement of Title 8, would continue to restrict access to request asylum in the country, due to the increase in costs and the burden of proof for persons with possible international protection needs. It also limits the access of migrants to other mechanisms to regularize their immigration status in the United States, which could generate risks that increase their situation of vulnerability.

In this regard, the Commission reiterates that while States have the power to set their migration policies and determine who may enter, leave and remain in the territory of the State, these policies must ensure the protection of the human rights of persons in human mobility. Therefore, it calls on the United States to adopt a complementary approach between the protection of the right to refuge and asylum, complementary protection and other mechanisms to ensure the regularization of legal status of migrants who arrive in an irregular situation to the country, based on access to rights and durable solutions, in order to address the challenges posed by large-scale mixed movements that would be arriving in the United States.

Finally, the IACHR highlights the importance of coordinating regional actions and strategies to create or expand channels that allow people to move regularly and safely, such as the expansion of visa liberalization or easy access visas, as well as complementary protection measures, temporary protection, humanitarian visas, student visas, work visas, family reunification, different categories for residency, as well as private sponsorship programs, according to the standards provided in Resolution No. 04/19 on the Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons and Victims of Trafficking in Persons.

The IACHR is a principal, autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission is mandated to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity and do not represent their countries of origin or residence.

No. 099/23

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